A special committee of WeWork's board is suing SoftBank after SoftBank withdrew its $3 billion tender offer, the company announced Tuesday. WeWork is claiming that SoftBank breached its obligations under their agreement.
SoftBank originally made the tender offer to buy shares of WeWork at an agreed upon price last year as part of a package to bail out the company after its failed IPO. The money would've gone to current and former employee shareholders, outside shareholders, and ousted CEO and co-founder Adam Neumann. WeWork estimates about $450 million would've gone to current and former employees, according to a person familiar with the matter.
WeWork alleges SoftBank breached its fiduciary duty to WeWork's minority shareholders by failing to follow through with the offer. SoftBank said last week that its decision to withdraw came from its own fiduciary duty to shareholders.
"Nothing in the Special Committee's filing today credibly refutes SoftBank's decision to terminate the tender offer," a spokesperson for SoftBank said in a statement. "Several of the conditions the Special Committee, WeWork, Adam Neumann, SoftBank and SoftBank Vision Fund agreed to last October as requirements for completing the tender were not met as of April 1, 2020."
The spokesperson called the lawsuit a "desperate and misguided attempt" to "rewrite" its agreement and said SoftBank has remained committed to WeWork beyond the offer, investing more than $5 billion since October.
In a previous statement announcing its withdrawal of the offer to buy shares of WeWork, SoftBank said its decision "will have no impact on WeWork's operations, customers, five-year business and strategic plan, or the vast majority of WeWork's current employees."
WeWork was set on a downward spiral after filing its IPO prospectus last year, which revealed a $900 million loss over six months and questionable corporate governance practices. WeWork later withdrew its prospectus and Neumann was ousted. Part of the tender offer would have benefited shareholders including Neumann, but it also included hundreds of millions for workers whose share values dropped.
The company is seeking to require SoftBank to complete its offer or pay compensatory damages, according to the announcement.
"SoftBank has already received most of the benefits provided to it under the [Master Transaction Agreement], including broad control of WeWork and additional economic benefits," the special committee of WeWork's board said in a statement. "SoftBank's wrongful conduct in failing to consummate the tender offer deprives WeWork's minority stockholders of the liquidity that they were promised."
WeWork claims SoftBank and its CEO, Masayoshi Son, purposefully pursued a separate transaction with minority investors in WeWork's joint venture in China, both to dilute SoftBank's ownership in the unit and to ensure the initial deal wouldn't close by April 1. SoftBank had initially agreed to roll up the China JV and used its "influence over those investors" to ensure they didn't waive certain provisions that would have caused a deal to close on time, WeWork argues.
"Son and other SoftBank executives had discussions with certain ChinaCo minority investors and used their influence over those investors to convince them not to waive certain first refusal and co-sale rights," WeWork's special committee argued in a court filing. "The practical effect of the investors' non-waiver was that the roll-up of ChinaCo could not be completed in accordance with the MTA, preventing a condition to the Tender Offer from being satisfied. SoftBank took these actions despite its contractual obligation to use reasonable best efforts to effectuate the roll-up."
SoftBank cited new investigations into WeWork by government authorities in withdrawing its tender offer. Reuters reported in November that New York state Attorney General Letitia James was probing the company. But the special committee for WeWork said in its statement that SoftBank was aware of all investigations at the time it signed the agreement on Dec. 27.
SoftBank has made its reputation on spending cash at a rapid rate but in the face of a global downturn, it will likely need to adjust its strategy. Just before the market sell-off, SoftBank Vision Fund head Rajeev Misra told CNBC he expected dozens of the fund's portfolio companies going public in the next 18 to 24 months. Now, those companies may be putting their plans on hold and turning to SoftBank for cash to get them through the months ahead.